Taking age discrimination off the menu

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Lois A. Bowers
Lois A. Bowers

I couldn't help but think of LeadingAge and its president and CEO, Katie Smith Sloan, this week when I read about the status of the U.S. Equal Employment Opportunity Commission's lawsuit against Louisville, KY-based national restaurant chain Texas Roadhouse.

As background, the EEOC sued the steakhouse in 2011 in U.S. District Court for the District of Massachusetts after conducting its own research that it said showed that the restaurant had a history of not hiring people older than 40 years for “front-of-the-house” and other visible positions, such as servers, hosts and bartenders, believing that older adults wouldn't help convey the chain's desired youthful image.

As part of the case, according to investigative journalism outfit ProPublica, the commission provided statistics that showed that fewer than 3,000 of the almost 200,000 people Texas Roadhouse has hired since 2007 for front-of-the-house positions were aged more than 40 years, “a disparity so great the government's expert witness estimated the odds of it happening absent discrimination at one in 781 billion.”

The EEOC, ProPublica and other media reports said, also produced evidence that company interviewers at 38 restaurants in 20 states made comments in files about applicants such as “Old ‘N Chubby,” “OLD,” “little older lady” and “middle age ... Doesn't really fit our image.” The lawsuit, ProPublica said, is the largest age-discrimination case the commission has brought to trial in more than three decades, covering 500 restaurant locations and thousands of workers.

Texas Roadhouse disagreed with the EEOC's assertions and also said that the commission has no authority to bring such cases.

So what does this case have to do with senior living? The outcome ultimately may affect hiring practices at all types of employers across the country. Samuel Bagenstos, the Frank G. Millard Professor of Law at the University of Michigan Law School, told Bloomberg that an EEOC win would communicate that “the prohibition on age discrimination applies to employers across the economy,” even those with brands associated with youth.

“Youthful” may not be the first word that comes to your mind when you think of senior living organizations. When Sloan shared LeadingAge's new vision of “an America freed from ageism” at the group's 2016 annual meeting, however, she told meeting attendees that “ageism seeps into everything you have been doing in your organizations for many decades,” including recruiting.

U.S. District Court Judge Denise J. Casper declared a mistrial in the case Friday after the jury could not reach a unanimous decision after three days of deliberating.

Regardless of the outcome in the Texas Roadhouse case, however, as Sloan noted: “An America freed from ageism is a big and bold vision, and it will take brave hearts to make it happen. We all need to be part of this.”

Lois A. Bowers is senior editor of McKnight's Senior Living. Contact her at lois.bowers@mcknights.com. Follow her on Twitter at @Lois_Bowers.

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